Department Justice Seal and Banner
Testimony
Melanie Ann Pustay
Director the Office Information Policy
Department Justice
Information Policy, Census, and National Archives Subcommittee The
Oversight and Government Reform Committee
Thursday, March 18, 2010
2154 Rayburn HOB
2:00 p.m.
Administration the Freedom Information Act: Current Trends
Testimony Melanie Ann Pustay,
Director the Office Information Policy
United States Department Justice the Director the Office Information Policy the Department Justice, pleased here this afternoon address the subject the Freedom Information Act (FOIA), U.S.C. 552 (2006), amended OPEN Government Act 2007, Pub. No. 110-175, 121 Stat. 2524, further amended Open FOIA Act 2009, Pub. No. 11-83, 123 Stat. 2142, 2184, and the efforts the Department Justice implement the Presidents January 21, 2009 Memorandum the FOIA, well the Attorney Generals March 19, 2009 FOIA Guidelines. the lead federal agency responsible for implementation the FOIA across the government, the Department Justice are especially committed encouraging compliance with the Act all agencies and fulfilling President Obamas goal making his Administration the most open and transparent history. you know, historic first, President Obama issued memorandum the heads all departments and agencies the Freedom Information Act his first full day office. and itself, this action sent powerful message agencies and the public alike about his commitment transparency. doing so, the President called agencies usher new era open Government. directed agencies administer the FOIA with clear presumption: the face doubt, openness prevails. Moreover, the President instructed agencies that information should not withheld merely because
"public officials might embarrassed disclosure, because errors and failures might
revealed, because speculative abstract fears."
Agencies were directed apply the presumption disclosure to all decisions involving FOIA. The President also emphasized that this presumption means that agencies should take affirmative steps make information public and should utilize modern technology inform citizens about what known and done their Government. stressed that disclosures should timely. Lastly, the President directed the Attorney General issue new FOIA guidelines the heads all executive departments and agencies which reaffirm the governments commitment accountability and transparency.
The Attorney General issued those FOIA Guidelines one year ago, March 19, 2009, during Sunshine Week. The new FOIA Guidelines address the presumption openness that the President called for his FOIA Memorandum, the necessity for agencies create and maintain effective system for responding requests, and the need for agencies proactively and promptly make information available the public.
First, the presumption openness, the Attorney General's FOIA Guidelines strongly encourage agencies make discretionary releases records. They also direct agencies not withhold records simply because FOIA exemption may technically apply. Moreover, whenever full disclosure record not possible, agencies are directed consider whether partial disclosure can made. the same time, the Attorney General recognized that the Adisclosure obligation under the FOIA not absolute.@ The statute provides exemptions from mandatory disclosure protect, for example, national security interests, personal privacy, privileged records, and law enforcement interests. Still, the Guidelines stress that the President has directed agencies not withhold information merely prevent embarrassment public officials, because "errors and failures might revealed, because speculative abstract fears." key element the Attorney Generals FOIA Guidelines the creation new defensibility standard applied the Department Justice whenever agency FOIA determinations are challenged court. Attorney General Holder formally rescinded the October 12, 2001 Attorney General Memorandum the FOIA and established new standard for defending agency decisions withhold information. denial FOIA request now defended the Department Justice only (1) the agency reasonably foresees that disclosure would harm interest protected one the statutory exemptions, (2) disclosure prohibited law.
Second, the Attorney General emphasized that utilizing the proper disclosure standard only one part ensuring transparency. Achieving open Government also requires an effective system for responding FOIA requests. stressed that the responsibility for effective FOIA administration belongs all agency personnel, not just FOIA professionals. highlighted two key impediments cited agency personnel the past negatively impacting their ability administer the FOIA, specifically, competing agency priorities and lack sufficient technological support. called agencies address the key roles played broad spectrum agency personnel who work with agency FOIA professionals responding requests.
The Attorney General also emphasized the need for agencies work cooperatively with requesters, utilize technology make information available the
public proactively, and make timely responses requests priority. declared that
[l]ong delays should not viewed inevitable and insurmountable consequence high demand.
Lastly, the Guidelines discuss the critical roles played agency Chief FOIA Officers and stress that improving FOIA performance requires their active participation. The Attorney General called agency Chief FOIA Officers review their agencies FOIA administration each year, with focus the concerns highlighted his Guidelines, and report the Department Justice the steps taken achieve improved transparency. These reports, which were just completed for the first time this month, will serve the means which each agency will fully accountable for its FOIA administration directed the Attorney General.
The Department Justice fully committed helping agencies achieve the new era open Government that the President envisions. Office, the Departments Office Information Policy (OIP) has been actively engaged variety initiatives inform and educate agency personnel the new commitment.
Just two days after the President issued his FOIA Memorandum, January 23, 2009, OIP sent initial guidance agencies informing them the significance the Presidents Memorandum and advising them begin applying the presumption disclosure immediately all decisions involving the FOIA. OIP also added new training session the Presidents Memorandum its FOIA training seminar for attorneys and access professionals held Feb. 24, 2009. March 20, 2009, the day after the Attorney General issued his FOIA Guidelines, OIP highlighted their key features for agencies article posted FOIA
Post, the Departments online publication featuring FOIA guidance and news. That same
day OIP also announced that would hold training session provide guidance agencies the new directives. The following week, March 26, 2009, OIP held governmentwide training conference which was filled capacity with over five hundred agency personnel attending. that conference thoroughly discussed the Presidents FOIA Memorandum and the Attorney Generals FOIA Guidelines and provided guidance agencies implementing them. keeping with the new focus proactive disclosures and increased use technology, posted the Departments website the slides used that presentation that they would readily available the public. assist agencies implementing the new FOIA Guidelines, April 17, 2009, OIP issued extensive written guidance all agencies which posted FOIA Post. This guidance discussed the new approaches for responding requests and working with requesters; the new, more limited standards for defending agencies when they deny FOIA request; the new requirements maximize the use technology disclose information; the new requirement post information online proactively; the new focus the broad array agency personnel whose actions impact the FOIA; and also the new accountability requirements for agency Chief FOIA Officers.
Significantly, OIP provided agencies with concrete steps use and approaches follow applying the presumption openness. OIP described ways apply the foreseeable harm standard and discussed the factors consider making discretionary releases.
Beyond these principles applicable responding individual FOIA requests, OIP also provided guidance agencies achieving transparency new ways. Further,
OIP emphasized the need work cooperatively with requesters and make timely
disclosures information. Lastly, OIP discussed the key role played agency Chief FOIA Officers and encouraged FOIA professionals work closely with those officials.
OIP has also included discussion the Presidents and Attorney Generals FOIA Memoranda the 2009 edition the Department Justice Guide the Freedom Information Act. The FOIA Guide comprehensive reference volume the FOIA that compiled OIP every two years. serves the principal resource manual for agency personnel working with the FOIA. addition issuing written guidance agencies, since the issuance the Attorney Generals FOIA Guidelines, OIP has conducted numerous additional, agency-specific training sessions specifically focused the Presidents and Attorney Generals transparency initiative. Training sessions have been held the Departments the Army, Commerce, Navy, Energy, Treasury, Labor, Transportation, well the SEC, EPA, GSA, and the United States Trade Representative, and the United States Postal Service. OIP has also conducted special training session for the litigators the United States Attorneys Office for the District Columbia and has reached out each the remaining United States Attorneys Offices ensure that they are fully apprised the new Attorney General FOIA Guidelines. addition, OIP has added new sessions the Attorney Generals FOIA Guidelines its existing FOIA training programs. OIP regularly provides training agency personnel all aspects the FOIA, including the laws procedural
requirements, the nine exemptions, the fee and fee waiver provisions, and the
requirements make proactive disclosures.
OIP has also reached out the public and the requester community. regular speaker events sponsored the American Society Access Professionals, association public and private sector officials and individuals interested issues relating transparency. OIP hosted Requester Roundtable over the summer where invited any interested members the FOIA requester community meet with OIP and share their ideas for improving FOIA administration. There have been numerous follow-up sessions and continued dialogue with the requester community, which has been very productive.
For example, direct response concerns raised the requester community concerning difficulties reaching agency personnel, just this month, March 4th, OIP issued guidance all agency personnel emphasizing the need for good communication with FOIA requesters and requiring agencies provide agency point contact all requesters, well take number other steps improve communication with requesters. These simple steps have the potential long way imbuing spirit cooperation into the FOIA process, the President has called for. These training programs and requester outreach activities will on-going the months and years ahead. pleased testifying today with Miriam Nisbet, the Director the Office Government Information Services. Our two offices began collaborating immediately. Our partnership will bring benefits both within government and the citizens who seek information about how their government works. Resolution disputes, before they
reach litigation, goal shared both OGIS and the Department Justice. Given that
shared interest, OIP has teamed with OGIS help educate agency personnel methods they can employ resolve disputes. December 2009, and again just last week, OGISs Director joined OIPs Director and OIPs Chief Staff training program the roles FOIA Public Liaisons. Later this month will team again conflict-resolution training seminar designed give FOIA Public Liaisons exposure mediation skills. addition, the Department works directly with agencies FOIA litigation, OGIS will mediating and resolving agency-requester disputes avoid that litigation. the Department fulfills its obligation encourage agency compliance with the FOIA, look forward OGISs reviews where agency compliance currently stands. Indeed, the Department looks forward working with OGIS those compliance reviews, that the President may provide recommendations Congress the future. the upcoming months OIP will conducting extensive review agency Chief FOIA Officer Reports, which the Department now requires agencies complete and which were due for the first time just this week. OIP issued guidance agencies last fall concerning the content these reports. The items required addressed each Chief FOIA Officer are directly tied the important transparency principles enunciated the President and Attorney General their FOIA Memoranda. particular, each agency Chief FOIA Officer was required describe the steps being taken their agency: apply the presumption disclosure, ensure that there effective and efficient system place for responding requests, increase proactive disclosures, increase utilization technology, and reduce backlogs and
increase timeliness responding requests. OIP will conduct comprehensive review the information contained these Chief FOIA Officer Reports order make assessment where agencies stand terms implementing the presumption openness called for the President and Attorney General. That review will specifically examine the issue backlogs FOIA requests.
Last year, the Department added several additional reporting requirements agency Annual FOIA Reports, beyond those called for the OPEN Government Act, effort target more specifically the issue backlogs FOIA requests. particular, the Department added requirement that agencies report their number backlogged requests and backlogged administrative appeals, i.e., those requests appeals that were pending the agency the end the fiscal year and that are beyond the statutory time period for response. Starting with the Annual FOIA Report for Fiscal Year 2009, agencies were required give comparison the backlogged numbers from year year. For any agency facing backlog requests, the Department required the Chief FOIA Officer Report contain description the steps being taken the agency reduce the backlog. keeping with the Presidents and Attorney Generals call for agencies increase their use technology, the Department also required Chief FOIA Officers report their agencys use technology the administration the FOIA, including whether their agency currently receives FOIA requests electronically. This the first time such data has been collected across the government. OIP intends use this data baseline determine how many agencies are taking advantage technology assist them their administration the FOIA and determine what types technological
solutions are being employed. For any agency not utilizing technology, they were
required explain their Chief FOIA Officer Report what the impediments are doing so. All this information will form the foundation for OIPs analysis, review, and subsequent outreach agencies going forward.
Increasing proactive disclosures critical element the Attorney Generals FOIA Guidelines. have asked agencies provide examples such disclosures their Chief FOIA Officer Reports. Within OIP are especially focused making proactive disclosures information about how the FOIA itself working. For example, agencies are required include their Annual FOIA Reports listing all the Exemption statutes that they relied during the preceding fiscal year withhold information. increase transparency that issue, OIP has compiled comprehensive list all the Exemption statutes cited agencies their Annual FOIA Reports for Fiscal Year 2008 and the process compiling such list from the Fiscal Year 2009 reports. OIP has also created chart all statutes that have been recognized the courts proper Exemption statutes and has posted that list its webpage, along with descriptions the material covered the statutes, well the corresponding case citations.
Facilitating the publics ability review and analyze agency data FOIA also priority for OIP. connection with the issuance OMBs Open Government Directive, OIP made available, for the first time ever, data.gov, twenty agency Annual FOIA Reports which had recompiled into open format. All agency Annual FOIA Reports are now required prepared open format and for Fiscal Year 2009 OIP posting all those reports data.gov facilitate public access the information they contain.
Looking ahead, OIP plans continue its outreach the important issue transparency. This will include additional training seminars and further guidance agencies, specialized training sessions, well one-on-one assistance through OIPs FOIA Counselor service. Ive stated previously, the Department committed achieving the new era open Government that the President envisions. closing, the Department Justice looks forward working together with the Committee matters pertaining the Governmentwide administration the Freedom Information Act. would pleased address any question that you any other Member the Committee might have this important subject.